The Drug War against Civil Liberty and Human Rights

A paper presented at the International Conference organized by the Liberal
Institute, Friederich Naumann Foundation, Potsdam, Germany, September 18, 2004. PDF version
of this paper.

Every year, the United States spends billions of dollars, imprisons many
thousands of drug offenders, and seizes tons of drugs. Yet today in America,
illicit drugs are readily available, and often cheaper and purer than ever
before.

The war on drugs has caused a cancerous growth of predatory misgovernment at
the federal, state and local levels. The war has resulted in terrible violations of America’s founding principles of
individual liberty, limited government, and federalism.

Today in America the drug war is fought by both the military and by militarized
police units. The drug warriors are well armed and funded, supported by
extensive human and electronic intelligence gathering and surveillance, and by
aggressive government propaganda. The casualties in the drug war are innocent
Americans and American constitutional liberties.

I. Prejudice and Racism

The root of the drug war in the United States is exploitation of public fear of
people who are different—fear of racial and cultural minorities.

During the first century of American independence, there were no drug laws at
all. Although some states enacted laws restricting alcohol, there were no laws
about drugs. It was perfectly legal to cultivate or consume cannabis, opium, or
any of the other drugs which today are classified as “Controlled Substances.”
Quite obviously, the first century of American independence was not a period of
national decline or degeneracy: the economy grew very rapidly, the United States
expanded from 13 states on the Atlantic Ocean to a great nation reaching across
North America to the Pacific Ocean.

The first move away from America’s traditional drug policy came in 1875 in San
Francisco, California. In order to provide cheap labor to build railroads in the
West, many corporations had imported Chinese male workers, who were derisively
called “coolies.” The traditional pattern of immigrants to the United States had
been for the immigrants to learn English, and to work hard to build a new home
for their families in the United States.

The Chinese workers, however, were not brought to the United States for
permanent settlement—only to work for a period of years. The corporation did not
allow them to bring their families, because they were not expected to live
permanently in the United States. Naturally, American workers resented the
imported Chinese laborers, who worked for low wages and took jobs away from
Americans.

A constructive resolution of the tensions caused by Chinese immigration would
have been to ensure that Chinese immigrants were encouraged to follow the same
path as European immigrants to the United States: to bring their families to
their new home in America, to learn English quickly, and to join the American
“melting pot.”

San Francisco, however, declared a culture war against the Chinese. The city
council enacted a local ordinance banning the smoking of opium in opium dens.
One of the rationales for the ban was that the Chinese opium dens corrupted
white people: “that these places are patronized not only by the vicious and
depraved, but are nightly resorted to by young men and women of respectable
parentage.”1

Logically speaking, the San Francisco prohibition made little sense. San
Francisco for decades had been a thriving port with a reputation as a rough town
with many bars and taverns. The many bars and taverns favored by the
hard-drinking sailors and other toughs of San Francisco were surely much more
dangerous to “young men and women of respectable parentage” than were the
Chinese immigrant opium dens.

The opium ban was directed at smoked opium (the preferred method of ingestion
by the Chinese immigrants) but did not apply to products such as laudanum, a
mixture of opium and alcohol used commonly as a panacea by white Americans.

The first federal drug law was the Harrison Narcotics Act of 1914. The United
States Constitution does not give the Congress a general power to pass criminal
law. To the contrary, the Constitution authorizes federal criminal laws only a
few specific subjects—such as piracy and counterfeiting. James Madison, “the
father of the Constitution,” explained that ordinary criminal laws would be left
to the state governments.2

2.
Even the Federalist Papers made it clear that criminal law enforcement would
not come under the federal sphere under the new Constitution. James Madison
wrote that federal powers “will be exercised principally on external objects, as war, peace, negotiation,
and foreign commerce....The powers reserved to the several states will extend to
all objects which, in the ordinary course of affairs, concern the lives, liberties,
and property of the people, and the internal order, improvement, and prosperity of
the tate.” James Madison, The Federalist, number 45.
http://www.foundingfathers.info/federalistpapers/fed45.htm

The Constitution does give Congress the power to collect taxes.3 So Congress enacted the Harrison Narcotics Act in the guise of a tax law. The
law required the payment of taxes for the production, importation, distribution
and use of opium and coca and their derivatives (e.g., cocaine, morphine, and
heroin). The Supreme Court upheld the Harrison Narcotics Act by refusing to
recognize the plain truth that the Act was a criminal law, not a genuine tax
law.4 Although federal government attorneys told the Supreme Court that the tax was
not intended as prohibition, the taxes were quickly raised to prohibitory levels, and even people who could afford the taxes were
not allowed to register to use or sell the substances lawfully.

Joseph McNamara, a Research Fellow at the Hoover Institution in Stanford,
California, explains that anti-Chinese sentiment lay behind the Act, as
prohibitionists told lurid tales of “Chinamen” seducing white women under the
influence of drugs. “The impetus for the passage of the Harrison Narcotic Act of
1914 came from the lobbying efforts of American missionary societies in China.
These groups enlisted the aid of other alcohol temperance organizations and
religious groups in the United States to get their version of sin written into
the penal code.”5

The Harrison Act was also incited by newspapers which printed wildly racist
headlines to drive up sales and to create panic about the rape of white women by
black men, high on cocaine. For example, a New York Times article titled, “Negro
Cocaine Fiends, New Southern Menace” claimed “most of the attacks upon white
women in the South are the direct result of the ‘cocaine crazed’ Negro brain.”6

As McNamara observes, the Harrison Act “represented a gross departure from past
federal practice of not interfering with state police powers. The racist
arguments convinced southern representatives, who were reluctant to acknowledge
federal power over states’ rights, to vote for the act.”

In 1937, Congress passed the Marihuana Tax Act, again ostensibly as a revenue
measure. In reality it was use of the tax power as a tool to

3 United States Constitution, Article I, section 8: “The Congress shall have the
Power to lay and collect Taxes…” 4 Alston v. United States, 274 U.S. 289 (1927). Perhaps because of the climate of
World War One, and because of the era’s great faith in big government, the
Supreme Court at the time was more deferential to Congress than the Court has
even been, before or since. 5 Joseph D. McNamara, “The American Junkie,” Hoover Digest Issue #2, Spring,
2004, page 3
http://www.hooverdigest.org/042/mcnamara.html
6 “The Racial History of U.S. Drug Prohibition,” Drug Policy Alliance, August
2001,
http://www.drugpolicy.org/about/position/race_paper_history.cfm,
citing New YorkTimes, Feb. 11, 1914.

create laws on a criminal law issue over which the Constitution gave Congress
no power.

In 1937 congressional testimony in support of the proposed Marihuana Tax Act,
Clinton Hester, Assistant General Counsel for the Treasury Department explained
how using taxation to achieve prohibition works:

“In order to raise additional revenue and to stamp out transfers to persons who
would use marihuana for undesirable purposes, it is further required that on any
transfer which is required to be made in pursuance of an order form a transfer
tax shall be imposed. This tax will be at the comparatively low rate of one
dollar per ounce, or fraction thereof, for transfers to registered persons, but
at the rate of $100 per ounce, or fraction thereof, on transfers to persons who
have not registered and paid the special occupational tax whether or not they
are required to register and pay the tax. It is made a criminal offense to
acquire marihuana without having paid the transfer tax, when payment of such tax
is required. Since those who would consume marihuana are not eligible to
register under the bill, and since the $100 tax on unregistered persons is
designed to be prohibitive, such persons could not acquire marihuana.”7

Proponents of the Marijuana Tax Act fomented racist fear of Mexicans. In
another 1937 Congressional hearing on the Act, Harry Anslinger, U.S.
Commissioner of Narcotics and an avid prohibitionist, included a letter from the
editor of the Alamosa, Colorado, newspaper, the Alamosa Daily Courier, as part
of his official testimony:

“I wish I could show you what a small marihuana cigarette (sic) can do to one
of our degenerate Spanish-speaking residents. That's why our problem is so
great; the greatest percentage of our population is composed of Spanish-speaking
persons, most of who are low mentally, because of social and racial conditions.”8

In a letter to Congress in support of the Act, Mrs. Hamilton Wright, a “special
representative” of the Bureau of Narcotics wrote, “We know it as the ordinary
hempweed which can be grown in any backyard in any State in the Union. Its use
as a stimulant or narcotic is, however, of recent date. It was introduced about
10 years ago by Mexican peddlers in the form of

cigarettes. Its use has spread like wildfire and is associated with crime in
its most vicious aspects.”9

Besides raw racism, the advocates of marijuana prohibition also raised fears of
youth culture. Beginning the in the 1920s, jazz music had become very popular
with American youth. Many jazz musicians were black, since jazz is a combination
of traditional black folk music with other musical idioms. Many jazz musicians
did use marijuana, and many older people considered the whole jazz culture
scandalous; they were outraged that people in their early twenties might go to
dances without older people serving as chaperones, might kiss even when they did
not intend to marry, and might dance to music which had strong sexual rhythms.

Today, the music of Glenn Miller and other jazz artists from the 1930s is
considered calm and soothing, and mainly enjoyed by older people who listen to
it quietly, or who dance to it elegantly. But at the time of the Marihuana Tax
Act, Harry Anslinger was warning Americans that Glenn Miller was part of the
jazz and marijuana culture that was destroying America.

A popular film from the period was “Reefer Madness.”10 The movie showed young people who went insane from smoking marijuana and
dancing to piano music which was played too fast. Today, the film is shown on
college campuses as a joke. But many people have spent decades in prison because
they violated laws enacted by legislators who believed that propaganda such as
“Reefer Madness” was the truth—by legislators who let themselves be terrified by
mean-spirited accusations against Mexicans, blacks, and young people.

Racism in the Drug War continues today. In 1986, President Ronald Reagan signed
into law the Anti-Drug Abuse Act, which appropriated nearly $1.7 billion dollars
to fight the drug war and created mandatory minimum sentences for drug offenses.
Possession of one kilogram of heroin or five kilograms of cocaine is punishable
by up to ten years in prison and the sale of five kilograms of crack cocaine is
a mandatory five years.

A 1995 report on by the U.S. Sentencing Commission found that blacks were more
likely to be convicted of crack cocaine offenses, while whites were more likely
to be convicted of powder cocaine offenses.11 In

Yet statistics from the National Institute on Drug Abuse (NIDA) reveal that
most crack users are white. Of person reporting cocaine use (in anonymous
surveys) in 1991, 75% were white; 15% black and 10% Hispanic. In the same year,
persons reporting crack use were 52%, white, 38% black, and 10% Hispanic.13

The Hoover Institution’s McNamara sums up the racism of the drug war:

“Actually, the overwhelming majority of American drug users have historically
been Caucasians. The fact that minorities are arrested and incarcerated at
vastly disproportionate rates for drug offenses contributes to false stereotypes
and permits the continuation of one of the most irrational public policies in
the history of the United States. Blacks make up approximately 15 percent of
America’s drug users, but more than one-third of adults arrested for drug
violations are black. Similar distortions in drug arrests and incarcerations
apply to Hispanics.”14

The disproportionate racial arrest rates do not necessarily mean that modern
law enforcement is intentionally racist. Some criminologists argue that racial
minorities are more likely to be arrested for drug offense because they are
economically poorer, and therefore are less likely to own the private spaces
where they could use or sell drugs without detection.

Moreover, crack cocaine does appear to be more pharmacologically dangerous than
powder cocaine, because crack users seems to be more likely to commit violent
crimes while under the influence of the drug. Nevertheless, the extremely
disproportionate penalties are unjust; after all, the majority of crack users,
like the majority of users of all illegal drugs, do not commit violent crimes.

II. The Growth of the Drug War Bureaucracy

In 1971, President Richard M. Nixon, declared drug abuse to be “public enemy
number one in the United States” and the modern drug war was launched.

In 1970, Nixon signed into law the Comprehensive Drug Abuse and Control Act,
which consolidated and updated all previous federal drug laws. It also allowed
“no knock” searches; the police could break into homes without knocking first,
in order to prevent drugs from being destroyed while the police knocked.

Part of the 1970 legislation was the Controlled Substances Act, which
established five categories ("schedules") of regulated drugs based on their
medicinal value and potential for addiction. Drugs on Schedules II, III, IV, and
V, are available subject to strict regulations, including the requirement for a
doctor’s prescription. The federal government monitors prescriptions closely,
and brings criminal charges against doctors who allegedly prescribe too many
drugs, including pain-killers.

Schedule I is for drugs which have a very high potential for addiction, and
which have no medical use. Scientifically speaking, however, Schedule I is
nonsense. Included in schedule I are psychedelic drugs such as LSD. Scientific
evidence clearly shows that these drugs have almost no potential for addiction.15 And these drugs have been successfully used in psychotherapy in Europe, and in
the United States before they were banned.16

Similarly, marijuana is on schedule I, even though its potential for addiction
is relatively low, and even though marijuana has established medical uses.17 (Medical marijuana is discussed in more detail later in this paper.)

The Comprehensive Drug Abuse and Control Act was based on Congress’s
constitutional power “to regulate commerce…among the several States.” Yet the
Act does not apply only to interstate commerce. The Act also applies to the
sale, cultivation, or possession of drugs entirely within the borders of a
single state.

In 1973 Congress created the federal Drug Enforcement Administration,
consolidating the Office of Drug Abuse Law Enforcement (ODALE) and Bureau of
Narcotics and Dangerous Drugs; the new agency also included agents from the U.S.
Customs Service and the Central Intelligence Agency.

In 1989, President George H.W. Bush created the cabinet level Office of National Drug Control Policy
(ONDCP) to oversee and coordinate U.S. drug policy. In charge of the new agency
is a “Drug Czar.” In the United States--a constitutional republic—a high level
government official in charge of a powerful internal law enforcement agency is
referred to by the same term as an absolute Russian tyrant.

Today, America’s drug war apparatus is vast. President Nixon’s 1970’s federal
drug enforcement bureaucracy consisted mostly of the fledgling DEA, which had
around 1,470 special agents and a budget of roughly $75,000,000.18 Today, the DEA has over 4,600 special agents and a support staff of nearly
5,000 more. Its budget in 2003 was $1,879,000,000.19 Internationally, the DEA operate 80 offices in 58 different countries.20

The DEA is hardly alone in the federal drug war. The U.S. Justice Department
operates its own drug intelligence agency.

The new Department of Homeland security, created in response to the Sept. 11th terrorist attacks, devotes considerable resources to fighting drugs rather
than fighting terrorism. The Department of Homeland Security is in charge of
Immigration and Customs Enforcement (ICE), the U.S. Coast Guard, and the Border Patrol, all of which are heavily involvedin
narcotics interdiction and enforcement.

The U.S. Department of State has a Bureau of International Law Enforcement and
Narcotics Affairs.

For fiscal year 2005, the ONDCP is scheduled to distribute over $12,000,000,000
to a variety of federal agencies—above and beyond the agencies’ own budgets—for
the drug war, including the Department of Defense, Homeland Security, both the
Justice and State Departments.21

In addition, the ONDCP conducts a public relations advertising campaigns
against drug users, and against citizen efforts to change American drug
policies. One television commercial claims that Americans who smoke marijuana
are helping terrorists.22

The federal government organizes and leads multi-jurisdictional, multi-agency
narcotics task forces combining local and state police agencies throughout the
United States. Just in Colorado (a state with less than 2% of the U.S.
population), there are at least 20 such task forces operating. Thus, the federal
government takes a lead role in directing state and local law enforcement of
state and local drug laws. Such federal control is contrary to the American
Constitution, which, as James Madison explained, includes the principle that
state and local law enforcement would be independent of the federal government.

The domestic federal drug war budget is over $20,000,000,000 dollars today; add
in state and local spending and the total exceeds $40,000,000,000.

To put this in perspective, the average monthly Social Security retirement
check in the U.S. in 1972 was $177. Presently, the payment averages slightly
more than $900 a month. If, however, Social Security benefits had increased at
the same rate as drug war spending, today’s check would be around $30,000 a
month.23

In proportion to the large scale expansion of the drug war machine has been a
massive expansion of the prison population in America. A 2001 report from the
Center on Juvenile and Criminal Justice shows that during the eight years of the
Clinton administration alone (1993-2000), the federal prison population doubled,
to more than 147,000, with 58% of those prisoners serving time for drug
offenses.24

State prison populations have also soared, with many state prisons taking in
more drug offenders than property felons.25

25 U.S. Department of Justice, Bureau of Justice Statistics, “Prison Statistics,
2003.” In 2001, drug offenders made up 20% of the state prison population versus
19% for property crimes.
http://www.ojp.usdoj.gov/bjs/prisons.htm

Overall, there are more two million Americans in prison, and another 4.5
million on probation or parole. Two million more people work in the prison
business—making prison employees (like government school teachers), one of the
most powerful lobbies in many state legislatures. Some of the prison-population
increase is attributable to sterner attitudes toward violent and property
crimes, but the explosive growth of the prison population over the last two
decades would have been impossible without the massive incarceration of people
for drug offenses.

According to Timothy Lynch at the Cato Institute, it took America 200 years to
jail its first million prisoners, but a scant ten years to get to the second
million. In 1981, 22% of federal inmates were drug prisoners, in 2000, 60% were
drug prisoners and the rates have only increased since.26

Besides creating a prison growth industry, the drug war diverts police
resources away from investigating and arresting violent and property criminals.
According to the FBI’s own reports, in the year 2000, state and local police
arrested 734,498 people for marijuana offenses, with 88% for possession, rather
than sale or manufacture.27

Yet despite the vast expansion of the drug war establishment and America's
"success" in turning the United States into the world's largest jailer, both
heroin and cocaine are purer, cheaper and at least as available today as they
were 15 years ago.

Eric Sterling, former Counsel to the U.S. House of Representatives Judiciary
Committee writes in the book “The New Prohibition”, “The price for a pure gram
of cocaine delivered at retail has gone from $433 in 1982 down to $184 in 1999.
The price of a pure gram of heroin at retail has gone from $3,285 in 1982 down
to $1,929 in 1999.” Moreover, “Cocaine average retail purity has increased from
36% in 1982 to 64% in 1999. Heroin average retail purity has increased from 5%
in 1882 to 27% in 1999.28

According to the Drug Enforcement Administration’s “State Factsheets” section
of its website:

“Cocaine prices in 2001 remained low and stable, suggesting a steady supply to
the United States.”

“Average purity for cocaine at the gram, ounce, and kilogram levels remained
stable at high levels. In 2001, the average purity of a kilogram of cocaine was
73 percent.”

“Heroin is readily available in many U.S. cities as evidenced by the
unprecedented high level of average retail, or street-level, purity.”

“The increased availability of high-purity heroin, which can effectively be
snorted, has given rise to a new, younger user population.”

“The availability of South American (SA) heroin, produced in Colombia, has
increased dramatically in the United States since 1993.”

“Prices for commercial-grade marijuana have remained relatively stable over the
past decade.”

“Marijuana is the most widely abused and readily available illicit drug in the
United States, with an estimated 11.5 million current users.”29

In short, heroin and cocaine use in the United States is much greater than when
the Harrison Narcotics Act was passed. Marijuana use is much greater than when
the Marihuana Tax Act was passed. Millions of Americans have been arrested and
jailed, huge amounts of tax money have been spent, and thousands upon thousands
of government employees have been hired to fight the Drug War. Yet the United
States is much further from the goal of creating a “Drug-free America” than when
the Drug War began.

III. The Militarization of Federal Law Enforcement in the Drug War

In the Anglo-American legal tradition, police officers are supposed to be
“peace officers.” That is, they are supposed to keep the peace by using force
only when necessary, by using the minimum amount force, and by respecting the
constitutional and other legal rights of all persons in the community, including
suspected criminals. The English and Americans strongly rejected the French
model of centralized and

militaristic law enforcement, because they believed that such a model was a
grave danger to civil liberty.30

Of course soldiers are expected to behave in an entirely different way from
peace officers. Soldiers must destroy their enemy quickly, without asking
questions. Soldiers do not minimize the use of force, but instead make sure to
use so much force that the enemy is annihilated. Soldiers must obey orders
without hesitation, except in very unusual circumstances. Soldiers do not worry
about violating the “rights” of the enemy, because the enemy has no rights,
other than the right to humane treatment as a prisoner of war, and a few other
rights under international law.

Soldiers and peace officers both perform important functions in protecting a
democratic society. But when law enforcement becomes the realm of the soldier
rather than the peace officer, civil liberty is the victim. The American Drug
War has led directly to a terrible militarization of American law enforcement,
with horrific consequences for human rights.

One reasons that the 13 American Colonies declared independence and fought a
revolution against the British was that King George IIII used British soldiers
to enforce customs laws and other policies of King George in the American
colonies.

In the 1830’s, Texas fought and won a war of independence from Mexico. The
Texan revolution was sparked in part by the Mexican government’s use of the army
to enforce the civil law in Texas.

In 1878, in response to abuses from the U.S. military enforcement of laws
against smuggling illegal liquor, Congress enacted the Posse Comitatus Act to
outlaw the use of federal troops for civilian law enforcement.

But a century later, in 1981, Congress passed and President Ronald Reagan
signed a bill which created a drug war loophole in the Posse Comitatus Act. In
1988, more loopholes were added, as part of an omnibus drug bill. One of the
great traditions of Anglo-American law—civilian and civil law enforcement—is
being destroyed.

[Sections III and IV of this Occasional Paper include excerpts from: David B.
Kopel, “Militarized Law Enforcement: The Drug War’s Deadly Fruit,” a chapter in
the book After Prohibition, Adult Alternatives to the Drug War (Washington,
D.C.: Cato Institute, 2000). The chapter is available at:

According to the revised law, the military may assist drug law enforcement
agencies in surveillance and similar activities, although soldiers are still not
supposed to confront civilians directly. Military equipment may be loaned to law
enforcement agencies, and the military may train law enforcement agencies. The
equipment and training may be for any purpose. If the purpose is drug
enforcement, then the equipment and training are free; if the training is not
for drug war purposes, the civilian agency must reimburse the military for the
training and the equipment.

As the Posse Comitatus Act was weakened, the U.S. military created Joint Task
Forces, whose primary mission was drug law enforcement. The most famous of these
Joint Task Forces, JTF-6, was created in 1989. Based in Fort Bliss, Texas, JTF-6
is responsible for the entire continental United States.31

According to the JTF-6 website, “Since its inception, JTF-6 has completed over
5,300 missions in support of more than 430 federal, state and local law
enforcement agencies and counterdrug task forces.”32

Although the JTFs were created solely for the drug war, this limitation is
disappearing. Early versions of JTF manuals discussed JTF cooperation with a
“DLEA” (“Drug Law Enforcement Agency”), meaning that the JTFs would be working
with agencies such as the Customs Bureau and the Drug Enforcement Agency whose
job description includes enforcement of drug laws.

But now, the word “drug” has been dropped, and the JTF vocabulary simply refers
to the “LEA.” This change reflects the fact that almost every law enforcement
agency, no matter how specialized, can invent some connection to the drug war.

As the JTF-6 website continues, “The command’s efforts have led to both a
greater recognition of the potential for military assistance in counterdrug
efforts and a significant expansion of the partnership among active duty forces,
reserve components, and LEA’s.”

For example, in February, 1993, the United States Bureau of Alcohol, Tobacco
and Firearms (BATF)33 launched an assault against the

31 JTF-6 was originally responsible only for the border states of California,
Arizona, New Mexico and Texas. The JTFs have been restructured over the years,
consolidating areas of responsibility. For instance, what used to be called
Combined Joint Task Force Four (CJTF-4) is now Joint Inter-Agency Task Force
East in Key West, Florida and has responsibility for the Caribbean and Latin
America. 32Joint Task Force-6 Website.
http://www.jtf6.northcom.mil/subpages/history.html

compound of a small religious community, the Branch Davidians, outside Waco,
Texas. Approximately eighty armed agents invaded the compound, purportedly to
execute a single search and arrest warrant. The raid went badly; six Branch
Davidians and four agents were killed, and after a fifty-one-day standoff, the
United States Justice Department approved a plan to use CS gas against those
barricaded inside. Tanks carrying the CS gas entered the compound. Later that
day, fire broke out, and all seventy-four men, women and children inside
perished.

As part of the planning for the Waco raid, the Bureau of Alcohol, Tobacco and
Firearms went to the Joint Task Force Six, which covers Texas, and asked for
training, medical, communications, and other support. The JTF-6 staff explained
that they could only be involved if the case were a drug case. Immediately
thereafter, BATF began asserting phony claims that the Waco case was a drug
investigation; Branch Davidian prophet David Koresh was supposedly running a
methamphetamine laboratory. It should have been obvious to JTF-6 that the
supposed drug connection was false. 34

Nonetheless JTF-6 signed onto the mission of “training a National Level
Response Team [BATF strike-force] for Counter Drug operations,” in “Support of
BATF Takedown of Meth Lab.” According to documents received from the U.S.
Special Operations Command under Freedom of Information Act requests, the Joint
Training operation (JT002-93) was approved due to a request from BATF asking for
U.S. and Texas National Guard assistance in serving a federal search warrant “to
a dangerous extremist organization believed to be producing methamphetamine.”

As Waco illustrates, the drug enforcement exception to the Posse Comitatus Act
has been very effective at undermining the honesty of law enforcement personnel,
who are encouraged to allege a drug nexus in

33 In 2002, the Bureau of Alcohol, Tobacco and Firearms (BATF) was removed from
the Treasury Department, and placed under the Justice Department. The Bureau was
renamed the “Bureau of Alcohol, Tobacco, Firearms and Explosives.” 34 Had BATF actually been planning to take down a methamphetamine lab, its plans
would have been far different. Testimony at the 1995 congressional hearings on
Waco indicated the potential dangers of an explosion if a meth lab is not taken
down properly. For instance, because a stray bullet could cause a major
explosion, a “dynamic entry” (a violent break-in, the BATF’s method of “serving”
the Waco search warrant) would be an extremely risky, disfavored approach.

In addition, the chemicals involved in methamphetamine production are toxic,
capable of injuring lungs, skin, liver, kidneys, the central nervous system, and
potentially causing genetic damage. Thus, DEA protocol for seizure of meth labs
requires that agents wear special clothing and bring other specialized
equipment. BATF not only made no such plans, but made express advance plans to
use flashbang grenades--grenades which could set off a massive explosion in a
real meth lab. For more, see David B. Kopel and Paul H. Blackman, “No More
Wacos: What’s Wrong with Federal Law Enforcement and How to Fix It” (Buffalo,
New York: Prometheus Books, 1996).

many investigations for the purpose of getting, gratis, federal military
assistance.

U.S. military surveillance in support of the drug war includessensors, listening
posts, ground surveillance radar, and ground patrols. It was one of these ground
patrols, conducted by U.S. Marines, which killed Esequiel Hernandez, an 18 year
old Goatherd near his home in Redford, Texas. The patrol spotted Hernandez and
his goats, and saw that Hernandez was carrying a rifle. (Carrying a rifle in
open country is lawful in Texas, and is very appropriate for shepherd to protect
his flock and himself from coyotes, rattlesnakes, and the like.) The Marines
said that Hernandez fired two shots from the .22 rifle. They tracked him for
twenty minutes, and when he allegedly raised his rifle again, a Marine corporal
shot him, 400 yards from his home, with an M16 machine gun.

Far larger than the number of U.S. Army personnel involved in the drug war on
any given day is the number of National Guardsmen. Although the National Guard
was created under the Congressional war power, and the Guard is part of the
military Reserve, and the Guard receives almost all of its funding and equipment
from the U.S. government, the Guard operates under the legal fiction that it is
not part of the military, and therefore does not have to obey the Posse
Comitatus Act.

The Guard’s militaristic law enforcement can be seen every fall, when Humboldt,
Trinity, and Mendocino Counties in California are invaded by Army, Air Force,
National Guard, and state and local forces, as part of the Campaign Against
Marijuana Planting (CAMP). In 2003, the California Attorney General reported the
2003 CAMP program, with National Guard participation, had a record year, seizing
over 466,000 marijuana plants during the 2003 growing season, a reported 100,000
plant increase over 2002.35 In the 2003 Defense Department Appropriations bill, the U.S. House
Appropriations Committee appropriated even more money than the Defense
Department had requested for National Guard Counter-drug State Programs—a
$33,400,000 increase, for a total of $167,722,000.36

Although the U.S. military, including the National Guard, is stretched thin in
counter-terror operations all over the world,this year the office of U.S. Senator Mitch McConnell (Republican of Kentucky)
proudly announced he brought home a $3,600,000 appropriation for the Kentucky

In California and in many other states, use of the National Guard for marijuana
eradication is sometimes preceded by a declaration from the Governor that
marijuana cultivation represents an “emergency” which necessitates the use of
the Guard. While most persons think of an “emergency” as a spontaneous and
unexpected event (such as a flood), the Orwellian military use of “emergency”
means “something that the Governor thinks is a serious problem, even if the
problem has persisted at endemic levels for many years.” The truth is another
casualty of the war on drugs.

In 1993, Congress ordered the Department of Defense to sell military surplus to
state and local law enforcement for use in counter-drug activities. Through
low-cost sales and donations, the U.S. military is transforming the equipment
possessed by state and local law enforcement in America. Some of the new
equipment is unobjectionable, such as armored vests and Kevlar helmets.

But the donation program also provides police agencies with extremely
sophisticated surveillance equipment, some of which can be used to spy on people
inside their homes. This equipment, such as sophisticated night vision gear and
thermal detection devices, is ideally suited for conducting warrantless searches
inside homes. And as long as the warrantless surveillance is not used in court
(but instead is used to develop leads for evidence that can be admitted), the
warranteless surveillance is unlikely to be discovered. For many years the Los
Angeles Police Department got away with thousands of illegal phone taps, by
always being careful not have evidence from the illegal tap itself introduced in
court.

The military donation program is also putting huge numbers of M-16 and M-14
automatic rifles, and M203 and M79 grenade launchers into civilian law
enforcement—quite an increase in firepower from the traditional service revolver
and back-up shotgun.

The drug war has also led to the proliferation of another type of firearm in
law enforcement, the German-made Heckler & Koch MP-5 machine pistols—which are
usually bought by law enforcement, rather than donated by the military. These
weapons are sold almost exclusively to the military and police. Some of the
company’s advertising to civilian law enforcement has conveyed the message that
by owning the weapon,

the civilian officer will be the equivalent of a member of an élite military
strike force, such as the Navy SEALs. One advertisement linked civilian law
enforcement to an actual war: “From the Gulf War to the Drug War.” The MP-5
itself is a fine machine pistol, but the sensational advertising can promote
overly militaristic attitudes among civil police officers who use the guns.

The military Joint Task Forces provide federal, state, and local law
enforcement with extensive training. Among the subjects taught are patrolling,
helicopter attacks, sniping, intelligence, and combat techniques. The combat
techniques often fall under what is called “Advanced Military Operations on
Urbanized Terrain” (AMOUT). This is a euphemism for Close Quarters Combat
(CQC)—house-to-house urban killing, as practiced in places such as Stalingrad in
1943. Before 1993, official Army policy forbade teaching Close Quarters Combat
to civilian law-enforcement, but that restriction has been abandoned. Much of
the military training is provided by the Army Rangers or the Navy SEALs—élite
attack teams.38

IV. State and local militarization

In September 1999, a paramilitary police unit in Denver, Colorado, executed a
no-knock raid on a home—based on the word of a junkie who claimed to have
purchased crack cocaine there--and shot and killed its occupant, Israel Mena. It
was the wrong house.39

Far more common than the use of the military or National Guard is the use of
paramilitary police units in the drug war. Over several decades of the drug war,
“Drug Warrior” has replaced the term “Peace Officer” in many police departments
across America, and the casualties have been piling up.

In the late 1960’s, the City of Los Angeles, California formed the first
Special Weapons and Tactics (SWAT) team in America, which gained national
notoriety, first through high profile missions in the late 60’s and early 70’s
against the Black Panthers and Symbionese Liberation Army, both militant
anti-government groups, and later in the 1970’s television police drama
“S.W.A.T. “

At first, SWAT was a group of designated police officers who could be called
out in the event of particularly difficult or dangerous situations such as
hijackings or hostage situations. SWAT officers were only slightly

better equipped and trained than regular police. The trend quickly caught on
and in many police departments, SWAT became more specialized and “elite”--often
operating outside the normal police command structure.

A survey by criminologist Peter Kraska found that by the late 1990’s, 89% of
police departments had paramilitary “SWAT” units, and forty-six percent have
received training from military personnel who were on active duty.40 Although Kraska’s figure may be too high (because police departments without
paramilitary units did not answer his survey), it is clear that local law
enforcement paramilitarism has increased drastically over the last several
decades.

In addition Kraska showed that nationwide, the deployment of SWAT teams had
increased 538% since 1980; 75% of SWAT missions are for serving search warrants;
almost all of the search warrants are for drugs. Drug searches are very
different from SWAT’s original purpose of hostage rescuing.

The victims of drug raids are not only people who break the drug laws:

In May of 2003, a squad of police from New York City’s Emergency Services Unit
(ESU is the NYPD’s version of SWAT) use a stun grenade and dogs to raid the
apartment of Alberta Spruill, where an informant had told them they would find
drugs and guns. After being thrown to the floor and handcuffed, the 57-year-old
grandmother died of a heart attack. Again, police had the wrong apartment. As
author Joel Miller puts it, she was “literally scared to death.”41

Less than a month before Israel Mena was killed in Denver, an unarmed 64 year
old grandfather of 14, Mario Paz, was shot dead in his own home after a Compton,
California, SWAT team blew the locks off his door in a late night drug raid
where no drugs were found.

In September, 2000, eleven year old Alberto Sepulveda was killed by a blast
from a SWAT shotgun while spread-eagle on the floor of his parent’s Modesto,
California, home during a drug raid where no drugs were found.

A month later, 64 year old John Adams died at the hands of police while
presumably defending his home from invaders when police kicked in his door at
night to serve a drug warrant, the wrong door on the wrong house.

• In Houston in the summer of 1998, six police officers broke into the home of
Pedro Oregon Navarro and shot him dead. The pattern was the same as in so many
drug war deaths: the police broke into his home at night, with no warning. When
the victim grabbed his gun to protect himself from the invaders, he was shot 12
times. Navarro had nothing to do with drugs; the search warrant had been based
only on the word of a drunk who, arrested for public inebriation, was given a
chance to give the police the address of a “drug dealer,” in exchange for being
released.

In Albuquerque, New Mexico, the city's SWAT team was dismantled after a study
by Sam Walker of the University of Nebraska found that "the rate of killings by
the police was just off the charts."

One can be in favor of drugs being illegal, and still oppose “the war on
drugs,” just as one can want food stamp fraud to be illegal without wanting a
“war on welfare cheaters,” because to have “a war” is to make it likely that the
military will become involved, or as happened in the U.S. police will become
more like the military, and that, inevitably, innocent blood will be shed.

V. Asset forfeiture

Drug war violence is often inspired by forfeiture laws, which allow the police
to seize property without permission from a court, and to keep the property even
if the property owner is acquitted of criminal charges—or if criminal charges
are never filed.

The earliest property forfeitures in America were in admiralty law, and were
narrowly applied. Forfeiture of ships that failed to pay customs duties was
considered necessary to protect the primary source of government revenue in the
early American republic: import/export taxes.

In United States v. La Vengeance, a case involving the seizure of a French ship carrying illegally exported
firearms, the 1796 U.S. Supreme Court held that the process was in rem and “does
not, in any degree, touch the person of the offender.” In other words, the legal
action was against a thing (the ship) and not against a person. Because only
persons have a right to a jury trial, the Court held that the ship was not
entitled to a jury trial.42

As legal scholar Donald Kochan explains, “The legal fiction that a suit could
be against the property for its role in an action by the owner was established
and followed.” So when the government uses in rem civil

42 3 U.S. (3 Dallas) 297 (1796).

proceedings in asset forfeiture, “[T]he right to an indictment, the presumption
of innocence, the right to effective assistance to counsel, the right to a jury
trial, the right not to be punished prior to adjudication of guilt beyond a
reasonable doubt, the right not to be punished in a manner disproportionate to
the crime, the general presumption that the state prove culpability, and the
practice of resolving legal ambiguities in favor of the defendant all do not
apply.”43

Kochan continues:

“In 1970, Congress passed the Comprehensive Drug Abuse Prevention and Control
Act containing the basic federal anti-drug civil asset forfeiture provisions.
This original version allowed for forfeiture of property used in connection with
controlled substances. In 1978, forfeiture of money and other things of value
furnished or intended to be furnished in a drug exchange was authorized. In
1984, the law was amended to include all real property used or intended to be
used in a drug exchange and all proceeds traceable to a drug exchange. Several
other statutes intended to fight the drug war extended forfeiture power to money
laundering, counterfeiting, and various other offenses. In 1992, an increase in
the federal government’s forfeiture power occurred when a law was adopted
completely eliminating any requirement that the actual property seized be
‘tainted’ by a connection to a crime. The statute allows the government to seize
any property identical to the property involved in the offense if it can be
found in the same place or same account. Thus, identification and connection are
no longer required under certain statutes”

The Comprehensive Crime Control Act of 1984 established the Department of
Justice Asset Forfeiture fund; the fund gives some federal forfeiture revenues
to state and local law enforcement agencies. As a result, state and local police
agencies throughout America became de facto subsidiaries of the federal
Department of Justice. In 1985, the federal fund took in $24,000,000. In 2003
the fund took in over $466,000,000 and distributed over $203,000,000 to various
state and local police agencies.44

The federal Department of Justice (DOJ) forfeiture fund is used to reward state
and local law enforcement agencies for acting contrary to state and local laws
about forfeiture! In 2000, the Kansas City Star newspaper broke a story
detailing how police agencies in more than two dozen states had been
circumventing state asset forfeiture laws, with the cooperation of the federal
government.

“When police seize money, they call a federal agency instead of going to state
court to confiscate it. An agency such as the Drug Enforcement Administration
accepts the seizure, making it a federal case. The DEA keeps a cut of the money
and returns the rest to police. State courts—and their and their generally more
restrictive forfeiture laws—are bypassed altogether”.45

In theory, the drug war induced expansion of asset forfeiture was meant to be
used as a tool against drug lords and traffickers. In reality it has often been
used as a form of legalized theft, encouraging police to seize people’s money
and property on the flimsiest of pretexts. For example:

“When Willie Jones, a Nashville landscaper, paid cash for an airline ticket,
city police suspected him of being a drug dealer. They searched him, found no
drugs, but seized the $9,000 he was planning to bring on his flight to Houston
to buy shrubs for his business. It took Jones two years and a federal lawsuit to
get his money back”.46

On October 12, 1992, a multitude of federal and state agencies (including the
National Park Service, the Forest Service, the Drug Enforcement Administration,
and the National Guard) broke into the home of southern California millionaire
Donald Scott. The no-knock, late night raid was supposedly designed to serve a
warrant to look for marijuana plants growing on Mr. Scott’s estate, although
there was no realistic possibility that Mr. Scott could have destroyed the
marijuana plants (alleged to be hidden in trees far from his home) during the
time it would have taken the police to knock at his door and demand entry. When
Mr. Scott, awakened by the noise of people breaking into his home at night,
attempted to protect his wife from the break-in by running into the living room
with his legally-owned .38 caliber revolver, he was shot dead. The search
yielded no evidence of drugs or illegal activity. A later investigation found
that the basis of the warrant was fabricated and that the sheriff’s department
that participated in the raid had conducted an appraisal

of the five-million-dollar Scott ranch before the raid, apparently with the
expectation that the ranch would be forfeited to the government.47

Federal government forfeiture laws and policies infringe the Tenth Amendment of
the U.S. Constitution:

“The powers not delegated to the United States by the Constitution, nor
prohibited to it by the States, are reserved to the States respectively, or to
the people.”

By paying for state and local law enforcement officers to act contrary to state
and local forfeiture laws, the federal government is audaciously attacking the
reserved power of state and local government to control their own state and
local law enforcement officers.

But because of the war on drugs, the American federal government exercises
tremendous influence over the practices and policies of state and local
governments. Centralized, national power of the “federal government” is
subverting the Constitution’s federal system; under the constitutional system,
the states deal with most issues, while a strong federal government addresses
only a limited list of issues for which unified national policy is necessary.

VII. Medical Marijuana

During the last decade, nine states have passed medical-marijuana initiatives
allowing the possession and use of marijuana for medical purposes. The laws were
passed by voter initiative (despite vocal opposition from many politicians and
police officials) in Alaska, California, Colorado, Nevada, Arizona, Oregon,
Maine, and Washington. In addition, the Hawaii state legislature enacted a
medical marijuana law.

And the reaction from the federal government? Members of Congress denounced
voters who had authorized medical marijuana. One representative said of medical
marijuana proponents, “It is despicable for legalization advocates to offer
false hope to the sick in a cynical effort to legalize marijuana.”48 Congress even barred the District of Columbia from counting the votes in the
city's own medical marijuana initiative. The vote-counting prohibition was later
struck down by a court for being an unconstitutional abridgement of political
speech.49

47 For details on the Scott case, see Kopel and Blackman, “No More Wacos,” supra.

The Bush and Clinton administrations have prosecuted people who complied with
state medical marijuana laws, but who violated federal marijuana laws. 50

President Bush strongly opposes medical marijuana. As Governor of Texas, he
signed a law to prevent cities or towns in the state from enacting medical
marijuana laws. Even so, during his first presidential campaign, in 2000, Bush
said that he believed the states ought to be able to decide the medical
marijuana issue for themselves. He also repeatedly claimed to “trust the people
more than the government.” If so, he should be especially trusting of
initiatives enacted by the people in eight states. There are twenty-three
American states which have the initiative process. In just a few years, a third
of the initiative states have already approved medical marijuana.

But contrary to candidate Bush's state's rights view of medical marijuana,
President Bush’s federal government has aggressively suppressed state's rights.
In California, the federal Drug Enforcement Agency (DEA) seized the medical
records of medical-marijuana patients and destroyed the marijuana gardens of
AIDS and cancer patients. In 2001, the DEA shut down the Los Angeles Cannabis
Resource Center in West Hollywood. DEA agents seized about 400 marijuana plants,
and the medical files of several thousand current and former patients. The DEA
even took the baking mix the Center used to cook marijuana chocolate brownies.51

In October 2003, the federal DEA temporarily “deputized” as federal agents some
local Colorado police. While under federal rather than state authority, these
local police violated their own Colorado government’s medical marijuana laws
when they joined federal officers in raiding the home of a Colorado
government-registered medical marijuana patient. The patient took the drug to
alleviate constant pain from kidney cancer, diabetes and lung disease. The
Colorado officers assisted the federal officer in seizing the patient’s supply
of marijuana.52

The “drug war” as actually fought by the American central government in the
national capital is partly a war against the rights of the

51 The issue is not whether the DEA has the legal power to act in these cases. In
2001, theU.S. Supreme Court ruled that the Controlled Substances Act of 1970 does not allow
a "necessity" defense in federal court, at least not in a context in which no
individual's medical needs were before the court.

state governments and of the people to control their own state governments.

IX. Solutions

In response to egregious use of asset forfeiture, state legislatures throughout
the U.S., including Colorado, have been reforming their laws.53 Likewise, the federal government has made some reforms in its forfeiture laws.54 Many reform laws require that a person be convicted of a crime before the
government takes his property. Other reforms require that forfeiture money be
spent on causes such as public schools, rather than being always given to the
police who took the money.

Some other drug war reforms include:

In 2001, and again in 2003, U.S. Representative Barney Frank and other
Congressional Democrats (with a few Republican co-sponsors) introduced the
“States Rights to Medical Marijuana Act”, which would simply allow states to
implement medical marijuana policy without interference from the federal
government. Foolishly, the Republicans who control Congress have refused to even
allow a hearing on the bill. Congressional Republicans should seize the
opportunity to show their commitment to federalism—without having to write a
single new regulation or hire a single new bureaucrat—by at the very least
allowing a committee hearing on the Act. 55

Most state and local law enforcement officers who currently enforce drug laws
or serve on federally sponsored narcotics task forces should be re-assigned to
investigating crimes against people and property and first-responder
preparedness for counter-terrorism.

Likewise, federal drug agents should be re-assigned and the majority of the
drug war budget de-funded or re-allocated to counter terrorism. For instance,
those DEA agents currently involved in harassing sick and dying Americans for
using medical marijuana might better serve American taxpayers, and the national
security, in a border patrol uniform.

Those Immigration and Customs Enforcement agents, and other federal agents
currently looking for drugs should instead be looking for al Qaeda and other
terrorists.

Congress should close the drug war loopholes to the Posse Comitatus Act and
de-fund the U.S. military’s drug interdiction operations (to include the
National Guard). The job of the military is to fight war against America’s
enemies, not against American constitutional liberties. The more that Americans
realize that defeating Islamic terrorism is essential to American survival, the
more that Americans will support making the war against Islamist Jihad the most
important foreign policy goal. Therefore, whenever the war on drugs conflicts
which the war against terror, the war against terror should win.

Current U.S. drug policies perpetuate an internal war against Americans and
against the American tradition of freedom and liberty, the war on drugs makes
America weaker and makes freedom everywhere weaker.

For three centuries, America has set a good example of freedom for other
nations. America can continue that tradition by ending the freedom robbing drug
war at home.

David B. Kopel is Research Director of the Independence Institute. www.davekopel.org. He graduated Magna Cum Laude from the University of Michigan Law School and
with Honors in History from Brown University. He is the author of ten books and
three dozen articles in scholarly journals. He also serves as an Associate Policy Analyst
with the Cato Institute.

Michael Krause is a senior fellow at the Independence Institute. www.independenceinstitute.org. He is a graduate of the University of Nebraska and served in the United States Coast Guard from 1987-1991 where among other duties
he performed search and rescue, immigration and drug interdiction missions in the North Atlantic Ocean and Caribbean Sea.

Make a donation to support Dave Kopel's work in defense of constitutional
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